Music Rights Societies Giving Heirs Their Share

By | March 5, 2005 at 12:00 AM

New York – Have you ever wondered who actually reads the obituaries page in your daily newspaper? One answer – a running joke in New York – is a renter who wants to find an apartment. But who else would tear out obits from The New York Times and take them to work?

One regular obit reader is Gary Roth, assistant VP of legal and business affairs for performing rights at Broadcast Music Inc. (BMI) in New York. He is one of the society’s executives who deals with royalties payable to the heirs of deceased songwriters.

Tracking heirs entitled to royalties and paying out appropriate shares can be a complex process, Roth says – so much so that BMI sought a federal District Court’s order in Nashville to divvy up the royalty pot of songwriter Roger Miller (“King of the Road”) among his widow and seven children.

At stake were several thousands of dollars and the answer to a question: Does a songwriter’s widow share royalties equally with the writer’s children or receive half of the royalties, with the children sharing the remaining half?

Muddying the Miller royalties-disbursement flow was the issue of the heirs’ rights during the renewal term of copyrighted songs.

Most people agree that Congress was wise when, in the 1976 Copyright Act, it abandoned the 28-year copyright term that granted a right to renew protection for another 28 years if certain steps were taken. Because of the complexity of this copyright renewal scheme, Congress enacted a different term, granting authors of works copyrighted on or after Jan. 1, 1978, rights for the life of the author plus a certain number of years (initially 50, now 70).

However, there are still older works – including some written by Miller – that were in their first 28-year term of protection in 1978. The Copyright Act provides that at the end of the 28-year period, rights are renewed and extended for another 67 years for the author or, if no longer living, the author’s “widow, widower or children.”

If the writer dies before the end of the 28-year period, however, then under copyright law his will is ignored and rights vest in the surviving spouse and children. The law does not state, unfortunately, the percentage each heir shares in these rights and royalties.

In Miller’s case, he bequeathed by will his entire copyright interests to his spouse, Mary Arnold Miller. Since he died during the first 28 years of protection for some copyrighted songs, however, his widow and seven children all held rights.

Mary and six children assigned their interests in these songs to Roger Miller Music, the publishing company she solely owned and operated. The seventh adult child, Shannon Miller Turner, retained her interests. She wanted BMI to pay her one-eighth of the royalties (12.5% of the total); the publisher wanted BMI to pay Turner one-seventh of one-half of the royalties (about 7% of the total).

The District Court held that all eight parties should share the royalties equally, but the Sixth Circuit Court of Appeals reversed the decision Jan. 28. In its lengthy opinion, the court analyzed copyright law and held that a surviving spouse receives 50% of the royalties and surviving children share equally in the remaining 50% when the writer dies before the copyright renewal period begins.

While this decision becomes binding law only in the sixth federal circuit (covering Tennessee, Michigan, Ohio and Kentucky), it will surely help resolve disputes concerning estates more quickly.

One pending estate is that of Screamin’ Jay Hawkins. He reportedly acknowledged fathering 57 kids before his death in 2000. News like this sends shivers down the spines of administrators who may have to identify and verify rights if there is no estate executor.

Most controversies regarding an heir’s royalties arise when the surviving spouse is not the parent of the deceased’s children, says Marty Majesky, counsel at BMI’s rival, the American Society of Composers Authors and Publishers (ASCAP).

Even when there are not any step-relatives, the payment process can be challenging when families are estranged. A surprising number of people do not know where their immediate relatives live, Majesky adds.

When the heirs cannot be located, their share of royalties may be held by the performing right organizations for a while. Eventually, however, this share is either paid to another heir under an agreement that includes a promise to indemnify the organizations if the other heirs later make claims, or it is paid according to laws in the state where the deceased songwriter lived.

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